Samy v State [2012] FJHC 865; HAM011.2012 (14 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA

MISCELLANEOUS JURISDICTION

Miscellaneous Case No. HAM 011 /2012

BETWEEN:

RAJENDRA SAMY
Applicant

AND:

STATE
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Applicant in Person
Mr. P. Bulamainaivalu for State

Date of Hearing: 3 & 10 February 2012
Date of Judgment: 14 February 2012

RULING

1. The applicant applies for bail, pending trial (a retrial) having been ordered by the Court of Appeal in Criminal Appeal No. AAU0019 of 2007 to be retried de novo on three counts of attempted murder.
   

Background

2. The Court of Appeal (by a majority) expressed a view obiter, that the accused should be granted bail and be permitted to live with his wife and children.
   
3. The State objects to the applicant being admitted to bail on the following grounds:
   
   1. That they have applied for special leave to appeal the majority decision of the Court of Appeal to the Supreme Court, which application has every likelihood of success.
      
   2. That the accused has a history of breach of bail terms, when admitted to bail prior to his original trial.
      
   3. That as the accused's residence is within a compound inhabited by two of the victims to the charges, and as the mother of the accused (a third victim) visits the compound regularly; there is every likelihood of interference with potential prosecution witnesses.
      
   4. The charges are serious, the evidence is strong and it is in the public interest that he be kept in custody pending the retrial.
      
4. The applicant submits in response that the families (including the three victims) have reconciled, and that his mother never returns to Fiji, she being resident in the United States of America. He submits that the integrity of the Court of Appeal judgment is paramount, and in particular the recommendation that he be admitted to bail.
   
5. The applicant claims that the earlier breach of bail is not a "history of breach" but was one occasion when he moved residence without leave of the court. He submits that the case had been ongoing on for years and he was put into a position where he had to move.
   

The Law

6. Unless it is not in the interests of justice, this accused has the right to be released on bail (Section 3(1) Bail Act 2002). It is for the State to rebut the presumption in favour of that right.
   
7. A previous breach of bail conditions is enough to rebut the presumption in favour of bail and the ultimate test is whether the accused person is likely to appear in Court to answer the charges laid against him (Section 17(2) of Bail Act).
   
8. It is incumbent on this Court to consider the likelihood of appearance along with the interests of the accused, and the interest of the community.
   

Discussion

9. The fact that the State has taken steps to appeal the decision of the Fiji Court of Appeal has no effect whatsoever on the application of presumption in favour of bail. This is not bail pending appeal, but bail pending trial, where an appeal has intervened. In many respects the State's appeal (which was filed on 9th February 2012) bolsters the applicant's case. Should leave be granted to the State to prosecute their appeal, then it would be listed for hearing by a full bench of that honourable Court and both steps in that appeal process could take some considerable time. Counsel for the State submits orally to this Court that the appeal has every likelihood of success, but fails to justify that claim in either written or oral submissions.
   
10. It is accepted that the accused did in fact breach two of his conditions of earlier bail by moving his residence without the leave of the Court and by failing to report to Samabula Police Station. These two breaches were dealt with on an application to revoke bail before Shameem, J on the 14th August 2007. The learned Judge said this:
    

"There is a need to balance the public interest in ensuring that accused persons attend court and obey court orders and the accused's interests in being able to earn and live with his family whilst waiting trial. Often the balance is achieved by imposing strict bail conditions."

11. Shameem, J was of the view that it was not desirable that he be remanded in custody when he needed to give instructions for trial but she in the alternative imposed very strict conditions on him.
    
12. With the appeal afoot, it could be a very long time indeed before this matter can be tried again, and it would not be in the applicant's interest to remain incarcerated in the meantime. Any public interest, that he be "protected" for trial is outweighed both by the Court of Appeal's recommendation that he be admitted to bail, and secondly by his need to earn money and instruct counsel for his retrial.
    
13. The state fears interference with witnesses; the applicant submits to the court that he and the witnesses are reconciled. The three victims are the mother of the applicant, and his two nephews. The mother now lives in the USA and does not return to Fiji. The nephews have had four years to visit him in custody and discuss the sad events leading to the charges and any no contact condition to fetter the applicant's bail would be worthless. They are family, they are neighbours and it is not for this court to impede their social intercourse.
    
14. The applicant is admitted to bail on the following conditions:
    
    • (i) That he live with his wife and family at Lot 55 Tiloko Lane, Nadawa. That he not move from that address without leave of this Court (Judge or Registrar);
      
    • (ii) That he report to Court every time his case is listed for mention or hearing;
      
    • (iii) That all travel documents be surrendered to Court;
      
    • (iv) That he enter into a bond on the sum of $750 that he would pay into Court if the conditions of bail are breached;
      
    • (v) That a suitable surety enter a bond of like sum;
      
    • (vi) That he report to Valelevu Police Station every Wednesday between 6 am and 6 pm.
      

Paul K. Madigan
JUDGE

At Suva
14th February 2012